Hitesh @ Bavko Shivshankar Dave VS State of Gujarat

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

SUPREME COURT OF INDIA
D.Y. CHANDRACHUD, C.J.I., SURYA KANT, J.
Hitesh @ Bavko Shivshankar Dave – Petitioner
Versus
The State of Gujarat – Respondent
Writ Petition (Criminal) No. 105 of 2022
Decided On : 18-04-2022

Advocates:
Advocate Appeared:
For the Petitioner: Rishi Malhotra.
For the Respondent: Deepanwita Priyanka.

Headnote:(A) Indian Penal Code, 1860 - Sections 302, 201, and 120B - Premature release - Conviction for murder and other offences, sentenced to life imprisonment - The court ruled that the petitioner's application for premature release must be considered based on the policy in effect at the time of conviction. (Paras 1-5)

(B) Remission policy - The state is obliged to exercise its discretion based on the convict's honest expectation at the time of conviction for premature release. (Para 4)

Facts of the case:
The petitioner was convicted on 16 July 2002 and has served approximately 15 years and 4 months without remission.

Issues: The primary issue was the consideration of the petitioner's application for premature release under the relevant policy at the time of conviction.

Ratio Decidendi: The court stated that the application for premature release needs to align with the applicable policy during the time of the petitioner's conviction, and authorities are obligated to exercise discretion in favor of the convict.

Result: The case for premature release must be considered according to the policy effective at the time of conviction, with a decision to be made within three months.

Table of Content
1. conviction and sentence details. (Para 1 , 2)
2. consideration for pre-mature release. (Para 3)
3. exercise of discretion by state on remission. (Para 4)
4. policy application for pre-mature release. (Para 5)
5. disposition of the petition and applications. (Para 6)

ORDER :

1. By a judgment dated 16 July 2002, the petitioner was convicted for offences punishable under Sections 302, 201 and 120B of the Indian Penal Code 1860 and was sentenced to suffer rigorous imprisonment for life. The appeal was dismissed by the Gujarat High Court on 21 August 2009.

2. The custody certificate issued by the Superintendent, Morbi Sub Division Jail, Gujarat on 3 March 2022 indicates that the appellant has undergone a total sentence of approximately 15 years and 4 months, without remission.

3. The submission on behalf of the petitioner, which has been urged by Mr. Rishi Malhotra, counsel, is that in view of the decision of this Court in State of Haryana vs. Jagdish , (2010) 4 SCC 216 the application for the grant of pre-mature release will have to be considered on the basis of the policy, as it stood on the date of the conviction.

4. In State of Haryana vs. Jagdish (supra), this Court has held thus:

“54. State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a “lifer” for pre-mature release, he should be given benefit thereof.”

5. In the circumstances, following the law laid down by this Court, we order and direct that the case of the petitioner for pre-mature release shall be duly considered by the competent authority on the basis of the policy which held the field on 16 July 2002, when the petitioner was convicted by the trial court. A decision on the application for pre-mature release shall be taken within an outer limit of three months from the date of the order of this Court.

6. The petition is accordingly disposed of. 8 Pending application, if any, stands disposed of.

Click Here to Read the rest of this document